Dr. Jose Julio D'costa v. Commissioner Of Income Tax, Bangalore

IN THE HIGH COURT OF BOMBAY AT GOA REFERENCE UNDER INCOME TAX ACT NO. 24 OF 2016 DR. JOSE JULIO D'COSTA., Versus ... Applicant COMMISSIONER OF INCOME TAX, BANGALORE., ... Respondent Mr. R.G. Rivankar a/w. Mr. Rama Rivankar, Advocate for theApplicant.Ms. Amira Razaq, Advocate for the Respondent. -Coram:SHANTANU S. KEMKAR &NUTAN D. SARDESSAI, JJ.-Date:17th January 2018 PC. . Parties through their counsel. 2. This Reference under Section 256(1) of the Income Tax Act,1961 (for short "the Act") has been made by the Income TaxAppellate Tribunal, Pune for answering the following questions. "(1) Whether in computing the income from profession carried on by a member of the Communion of property in force in theState of Goa, in accordance to the provisions of Head D - Profitsand gains of business of Profession' comprising of sections 28 to44D, read with sec. 5A of the Ace deduction under section 32 onaccount of depreciation cannot be allowed on communionproperty used for the purpose of carrying on profession. (2) Whether the member of the Communion Property in forcein the State of Goa is a fractional owner of the CommunionProperty and hence is not entitled to depreciation under section32 of the Communion Property used by him in the course ofcarrying on Profession ?" 3. The learned counsel for the Applicant submits that all theauthorities i.e. Assessment Officer, the Commissioner and theTribunal have not decided the issue involved in the matter on thebasis of Section 5A read with Section 32 of the Income Tax Actas was prevailing during the relevant A.Y. 1984-85. It has beenpointed out by him that Section 5A of the Act was amended inthe year 1994 with retrospective effect giving effect to it from01/04/1963 and Section 32 of the Act introducing the expression"owned only or partly by the Assessee" was amended with effectfrom 01/04/1999. In the circumstances, according to him thequestions which have been referred for being answered by thisCourt will not arise and the Tribunal is required to consider theAssessee's case afresh taking into consideration the law at therelevant time of assessment. 4. The learned counsel appearing for the Revenue submits thatSection 5A of the Act since being amended retrospectively, therewould not be any change in the interpretation given by theTribunal to that extent. However, she is not in a position to dispute that Section 32 of the Act has been amendedprospectively from 01/04/1999 and hence may not apply to theassessment of the relevant year in question. 5. Having considered the submissions made by the learnedcounsel for the parties, we are of the view that the matterrequires to be remanded back to the Tribunal to decide it afreshtaking into consideration the law prevailing at the relevant time.In these circumstances, we decline to answer the questionsreferred. 6. The Reference is disposed of accordingly. NUTAN D. SARDESSAI, J.vishal SHANTANU S. KEMKAR, J.